Kozak v Ehrhardt [No 2]
[2023] WASCA 28
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOZAK -v- EHRHARDT [No 2] [2023] WASCA 28
CORAM: MITCHELL JA
HALL JA
HEARD: 9 FEBRUARY 2023
DELIVERED : 9 FEBRUARY 2023
PUBLISHED : 10 FEBRUARY 2023
FILE NO/S: CACV 77 of 2022
BETWEEN: JAMES KOZAK
Appellant
AND
CATHERINE CHRISTINE EHRHARDT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : APP 27 of 2022
Catchwords:
Appeal - Where misconduct restraining orders set aside by primary judge on the ground that the original hearing was procedurally unfair - Whether primary judge arguably erred in ordering the case to be remitted for a new hearing - Whether grounds of appeal challenging the remittal order have any reasonable prospect of succeeding
Legislation:
Restraining Orders Act 1997 (WA), s 34, s 44B
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | C Breheny |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Kozak v Ehrhardt [2022] WASCA 165
Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274
Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182; (2012) 84 NSWLR 523
REASONS OF THE COURT:
At the hearing of this matter on 9 February 2023, we ordered that the appeal be dismissed for reasons to be published later. These are our reasons for dismissing the appeal.
Background
The following background is taken from this court's recent reasons for dismissing a stay application brought by the appellant.[1]
[1] Kozak v Ehrhardt [2022] WASCA 165 (Stay decision).
On 13 January 2022, the Magistrates Court made a misconduct restraining order (MRO) against the appellant in favour of the respondent. The MRO was for a duration of 12 months. It included a requirement that the appellant must not:
[R]efer to the [respondent] by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any offensive manner to the [respondent].
The grounds for making an MRO are provided for in s 34 of the Restraining Orders Act 1997 (WA), which relevantly states:
A court may make an MRO if it is satisfied that -
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; …
and
(b)granting an MRO is appropriate in the circumstances.
The respondent's MRO application was supported by an affidavit of the respondent sworn on 15 November 2021.[2] The affidavit deposed to the appellant having published many posts containing offensive material concerning the respondent on two Facebook pages. The respondent, who is a member of a local government council, deposed to feeling offended, humiliated and intimidated, with particular reference to the publication of her address and the publication of images of firearms. She deposed to seeking an order preventing the appellant from publishing further material and approaching within 500 m of her, her immediate family and her home address. The Facebook posts referred to in the affidavit were identified as attachments to the affidavit.
[2] A copy of the affidavit, without attachments, is annexed to the appellant's affidavit sworn in the primary proceedings on 26 April 2022.
The appellant appealed to the District Court of Western Australia against the MRO. On 29 July 2022, the primary judge made orders setting aside the MRO, remitting the respondent's application for an MRO to the Magistrates Court and ordering a new trial of that application before a different magistrate.
The primary judge delivered oral reasons for making those orders. In essence, the primary judge set aside the MRO on the ground that the magistrate had failed to comply with s 44B of the Restraining Orders Act, which provides that, subject to a presently immaterial exception:
[A]t the request of a party to an application, the registrar of the court where the application was made is to provide to the person a copy of any affidavit received in evidence in relation to the application.
The primary judge found, in effect, that the appellant was not provided with procedural fairness as he was not provided with a copy of the affidavit on which the respondent sought to rely for the MRO application, to which he was entitled as of right, either prior to or at the hearing of the respondent's MRO application.[3]
[3] Primary ts 29 - 31.
In relation to the orders for a new trial, the primary judge said:[4]
Now, I do have a discretion to order a new hearing of the matter. Now, in my view it is appropriate to order a rehearing of the matter for this reason. On the evidence accepted by the magistrate and in the exhibits there is a very clear and cogent basis for the making of a misconduct restraining order against Mr Kozak.
Now, that I accept is on the basis of the evidence that was before the magistrate and that the magistrate hasn't had the benefit of any submissions or evidence Mr Kozak could adduce having had the opportunity to have a copy of the affidavit.
What that means is that it is clearly in the interests of justice for there to be a hearing on the merits of the application. Now, I accept Mr Kozak's argument that that may well be that the evidence is refined between now and then in the sense that the respondent who is now represented may with the benefit of counsel bring the evidence before the court in a manner that addresses some of the concerns set out by Mr Kozak.
However, I don't think Mr Kozak could have any quibble or take any issue with the respondent actually addressing the concerns that he has as to the quality of the evidence.
So it's going to be remitted for rehearing and I think it should in fairness be remitted for rehearing by a different magistrate. I have no doubt that the magistrate in this case will put in place programming orders for the exchange of evidence so that the issue of Mr Kozak knowing the case he has to meet is addressed probably by more comprehensive than usual programming orders.
[4] Primary ts 32 ‑ 33.
On 19 August 2022, the appellant appealed to this court against the primary judge's order remitting the respondent's MRO application to the Magistrates Court.
The appellant's case contains three grounds of appeal against the primary judge's order. The grounds are, in substance, to the effect that the primary judge erred in law by:
1.finding the magistrate did not comply with his obligations under s 44B of the Restraining Orders Act;
2.accepting that the respondent's affidavit sworn 15 November 2021 complied with s 9(3)(c) of the Oaths, Affirmations and Statutory Declarations Act 2005 (WA); and
3.concluding that there was a meritorious case to be remitted for retrial when it was open to find that the respondent's affidavit sworn 15 November 2021 did not contain the attachments referred to in it.
On 21 December 2022, the Court of Appeal registrar issued a notice for the parties to attend for the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding. That question was dealt with at the hearing on 9 February 2023.
Disposition
As was noted in the stay decision in dealing with the strength of the appellant's case:[5]
A common order where an appellate court finds there to have been a failure to accord procedural fairness in proceedings below is to remit the matter for rehearing. None of the grounds of appeal identify any compelling reason why the primary judge erred in adopting that approach in the present case. The error contended for in ground 1 concerns the finding which led the primary judge to set aside the MRO, rather than any finding which led the judge to remit the MRO application to the Magistrates Court. Grounds 2 and 3 relate to the manner in which the attachments to the respondent's affidavit of 15 November 2021 were dealt with. That is not a matter which appears to us to be material to the question of whether there should be a retrial of the respondent's MRO application, at which time evidence will need to be tendered afresh and can be scrutinised. It does not appear to us from the material before this court that the respondent's MRO application is hopeless or doomed to fail. In the circumstances, it is difficult to see why an order remitting the MRO application, so that it can be the subject of a hearing that is procedurally fair to both the appellant and respondent, should not have been made.
[5] Stay decision [20].
In oral submissions made at the hearing on 9 February 2023, the appellant contended, in essence, that:
1.The respondent had deliberately withheld the annexures to her affidavit in the Magistrates Court proceedings from the appellant after a magistrate repeatedly said at a directions hearing held on 15 November 2021 that the appellant should have a copy of the affidavit.
2.Between the time the respondent's affidavit was returned to her after the MRO was granted and the affidavit was handed to the District Court at the hearing of the appeal to that court, the respondent interfered with the attachments to her affidavit in the Magistrates Court.
3.This alleged conduct of the respondent had a tendency, and was intended, to pervert the administration of justice and should lead to an order dismissing the application for an MRO in order to protect the court from an abuse of the court's process and safeguard the administration of justice.[6]
4.In these circumstances, the case should not have been remitted to the Magistrates Court for rehearing, but rather the primary judge ought to have made an order dismissing the MRO application.
[6] Applying the principles described in Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274 [35] - [37], affirmed in Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182; (2012) 84 NSWLR 523.
It is apparent from the material filed in relation to the stay application that many of the factual contentions noted above are disputed by the respondent. It is also apparent from the appellant's oral submissions that a substantial part of the evidence on which the appellant relies to seek to establish these facts arose or came to be appreciated only after the decision by the primary judge remitting the matter.
Nothing in the appellant's written and oral submissions provides any reason for doubting the correctness of the primary judge's decision to remit the MRO application for rehearing in the Magistrates Court. That was the appropriate course where it could not be concluded, on the material before the primary judge, that the respondent's application for an MRO was doomed to fail but the primary judge was not in a position to himself determine the MRO application. To the extent that the appellant seeks to raise issues about the evidence which might be relied on by the respondent in seeking to obtain an MRO, those issues are appropriately determined at the new hearing in the Magistrates Court rather than on appeal to this court.
Further, the remittal order does not prevent the appellant from seeking to have the MRO application dismissed in the Magistrates Court on the basis of an asserted abuse of process. Given the contested nature of the allegations, and the absence of any factual findings after hearing evidence, it would not be appropriate for this court, and it would not have been appropriate for the District Court, to attempt to resolve the factual contest on an appeal hearing. The merit of the appellant's abuse of process contentions (about which we make no comment) is appropriately assessed by the Magistrates Court in the fresh hearing and determination of the MRO application, in the event that the appellant chooses to pursue those contentions in the Magistrates Court.
For these reasons, at the hearing on 9 February 2023, we were satisfied that none of the appellant's grounds of appeal had any reasonable prospect of succeeding, in the sense of resulting in the setting aside of the primary judge's order remitting the case to the Magistrates Court. We therefore ordered that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
10 FEBRUARY 2023
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